- (1.) THE appellant-defendant, Birdhi Chand S/o Dalu Ram Mali, has filed the present first appeal against the respondent- plaintiff, Smt. Sunita Sharma W/o Gopal B. Chotiya, by caste Sharma (Chotiya) R/o Ward No.11, Sujangarh, District: Churu against the judgment and decree dated 20.11.2006 of learned trial court of Additional District Judge, Ratangarh, Camp- Sujangarh, District Churu in suit for eviction and possession of the suit premises, viz. Civil Suit No.5/2003- Sunita Sharma Vs. Birdhi Chand in respect of residential plot of land, measuring 364 4/9 square Gaj., situated in Ward No.34, Tehsil Sujangarh, District Churu.
(2.) THE respondent-plaintiff, Smt. Sunita Sharma, came up with a case before the learned trial court that she is having a residential plot in town Sujangarh, for which a Patta was also issued by the competent authority i.e. the Municipal Council, Sujangarh. The said plot of land (hereinafter referred to as 'suit premises') was agreed to be sold by the defendant- Birdhi Chand only to her vide an Agreement to Sell dated 13.06.2000 for a sum of Rs.2,00,000/- and the possession of the suit premises was also handed over to her. Thereafter, on the basis of Agreement to Sell dated 13.06.2000, the plaintiff obtained "Patta" from the Municipal Council, Sujangarh on 13.03.2001 in her favour under the provisions of Section 90-B of the Rajasthan Land Revenue Act, 1956, read with relevant provisions of Rajasthan Municipalities Act, 1959. Later on, the said Patta was duly duly registered with the Sub-Registrar, Sujangarh on 17.05.2001. In the plaint, it was further averred by the plaintiff that adjacent to the plot of plaintiff, there is one plot of the defendant- Birdhi Chand himself, upon which he had constructed a hotel building. During the process of construction of said hotel building for putting construction material on his request, a temporary oral licence was given to the defendant to put his construction material on the suit premises or open land and upon revocation of the said licence, the plaintiff- Smt. Sunita Sharma asked the defendant- Birdhi Chand to handover the possession of the suit premises to her back; and upon not so handing over back the possession, she had to file the present suit. A notice Ex.10 dated 20.03.2003 was given by plaintiff through her advocate Sh. Bheem Shanker Sharma revoking the said licence. The defence was set up by the defendant- Birdhi Chand saying that it is true that he agreed to sell the plot of land in question to the plaintiff-Smt. Sunita Sharma but soon upon that, she agreed to give it back on rent to him at a monthly rent of Rs.100/- per month only and, therefore, the possession over the suit premises of defendant was as a tenant and he could not be evicted without the due process of law. The learned trial court after examining the evidence on record, oral as well as documentary, decreed the suit vide the judgment and decree dated 20.11.2006 deciding the Issues No.1 and 4 in favour of plaintiff-respondent, Smt. Sunita Sharma, while disbelieving the defendant- Birdhi Chand's stand that he was tenant for Rs.100/- per month on the suit premises. The learned trial court held that the defendant, Birdhi Chand had failed to establish any such tenancy rights in his favour, as no such documentary evidence viz. rent note or rent receipts were produced by him and even the alleged claim that he deposited the rent under Section 19-A of the Rajasthan Premises (Control of rent & Eviction) Act, 1950, (for brevity, hereinafter referred to as 'Act of 1950') was not believed as no such document of depositing the rent in the Court u/s 19-A of the Act of 1950, or tender of the same to the purported landlord, the present plaintiff was produced by the defendant- Birdhi Chand. Learned trial court has also taken adverse inference against the appellant-defendant that the suit premises which he agreed to sell for Rs.2,00,000/-, in April, 2000, only was purportedly given back to him for a monthly rent of Rs.100/- was again offered to be purchased back by the defendant in August, 2003 for a sum of Rs.10 lacs. Therefore, the learned trial court found that the defendant, Birdhi Chand was merely licensee and his possession over the suit premises was that of a licensee and upon its revocation, he was liable to be evicted and thus the learned trial court decreed the suit for possession in favour of plaintiff-respondent. Being aggrieved by the said judgment and decree of the learned trial court, the defendant, Birdhi Chand has preferred this first appeal before this Court, which was filed on 22.01.2007 and was admitted on 07.05.2007 while staying the execution of the decree, subject to defendant-appellant paying Rs.3,000/- per month to the respondent-plaintiff in stead of Rs.100/- as mesne profit, besides the arrears of mesne profit. Mr. N.M. Lodha, Sr. Advocate with Mr. Manish Dadhich, learned counsel for the appellant-defendant, Birdhi Chand, submitted that the learned trial court has erred in not even referring to the statements of DW.2 Ghanshyam S/o Mohan Lal, DW.3 Kanhaiya Lal S/o Bhanwar Lal, DW.4 Sanwar Mal S/o Khinva Ram and DW.5 Bhanwar Lal S/o Dalu Ram Sankhala, and has only referred the statement of DW.1 Birdhi Chand himself. He further submitted that though there was no documents of any lease or tenancy in writing between the parties, however, in a compromise arrived between the parties on 20.07.2005 in the course of separate injunction suits filed by both the parties, namely, Civil Suit No.69/2002- Sunita Sharma Vs. Birdhi Chand and Civil Suit No.70/2002- Birdhi Chand Vs. Sunita Sharma, on 20.07.2005, both the parties agreed that on the suit premises, or suit plot of land, neither the defendant- Birdhi Chand would raise any construction, nor the plaintiff-Sunita Sharma will evict him without adopting the due process of law. He also submitted that the Commissioner report Ex.16 dated 16.10.2002 would also indicate that the defendant-appellant, Birdhi Chand was in exclusive possession of the plot of land in question and, therefore, it should be presumed that the defendant, Birdhi Chand was in possession of the suit premises as a lessee or tenant and not as a mere licensee. For this proposition, he relied upon the decision of Hon'ble Supreme Court in the case of Delta International Limited Vs. Shyam Sundar Ganeriwalla & Anr. reported in 1999 DNJ (SC) 363 Para 15. The relevant extract of para 15 of the said judgment is reproduced herein below: - "15. .... Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operates as a licence. A recital test in each case is whether the instrument is intended to create or not to create an interest in the property the subject-matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not, it is a licence. In determining an interest the agreement creates a lease or a licence the test of exclusive possession, though not decisive, is of significance.' [Emphasis added] From the aforesaid discussion what emerges is: 1. To find out whether the document creates lease or license real test is to find out 'the intention of the parties', keeping in mind that in cases where exclusive possession is given, the line between lease and license is very thin. 2. The intention of the parties is to be gathered from the document itself. Mainly, intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. 3. In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, the intention is to be gathered from the other evidence which may be available on record, and in such cases exclusive possession of the property would be most relevant circumstances to arrive at the conclusion that the intention of the parties was to create a lease."
(3.) THUS , placing reliance on the above judgment, Mr. N.M. Lodha, Sr. Advocate assisted by Mr. Manish Dadhich, learned counsel for the appellant-defendant, Birdhi Chand submitted that the learned trial court has erred in decreeing the suit in favour of respondent-plaintiff, Smt. Sunita Sharma and the present first appeal of the defendant deserves to be allowed. On the other hand, Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Bheem Arora, learned counsel for the respondent- plaintiff, vehemently submitted that the title of the respondent-plaintiff is not in dispute. He further submitted that under an Agreement to Sell dated 13.06.2000, the defendant-appellant, Birdhi Chand, himself had agreed to sell the plot of land in question to the plaintiff- respondent, Smt. Sunita Sharma, for a sum of Rs.2,00,000/- and had handed over the possession to her. Though this Agreement to Sell was not produced as an evidence before the learned trial court, however, a copy whereof was produced before this Court for perusal. Learned counsel for the respondent-plaintiff further submitted that on the basis of said Agreement to Sell dated 13.06.2000, the plaintiff- respondent had obtained "Patta" from the Municipal Council, Sujangarh, Ex.1/A on record, which was duly registered with Sub- Registrar, Sujangarh on 17.05.2001. He submitted that even the defendant- Birdhi Chand is not disputing the title of the plaintiff- Smt. Sunita Sharma, however, he claimed to be a tenant for Rs.100/- per month on the said plot of land, for which admittedly no documentary evidence was led by him before the learned trial court. Even, his alleged depositing of rent u/s 19-A of the Act of 1950, no such application/treasury receipt was produced by him. He, therefore, submitted that there was no tenancy rights created in favour of defendant- Birdhi Chand and the learned trial court has rightly not believed the same. The oral evidence in the form of statement of DW.1, Birdhi Chand, defendant himself and DW.2, 3, 4 and 5 are also interested witnesses and are the close relatives of the defendant, Birdhi Chand and their mere oral statement that they had seen the defendant- Birdhi Chand paying rent to plaintiff, Smt. Sunita Sharma, is of little avail as the same is a self-serving evidence and the plaintiff also had produced oral evidence by way of witnesses in negative and, therefore, such interested witnesses of the defendant, could not be relied upon in the admitted absence of documentary evidence. He also submitted the defendant, Birdhi Chand, even though an income- tax assessee despite questioned in the this regard in the cross- examination, failed to produce any evidence like his Books of Account, etc. showing payment of such rent to the plaintiff � Smt. Sunita Sharma. He, therefore, urged that the defendant, Birdhi Chand had no tenancy rights over the suit premises and the possession was merely under an oral licence, given by the plaintiff, which stood terminated with the Advocate's notice Ex.10 dated 20.02.2003, and irrespective of the previous compromise dated 20.07.2005, the present suit which was filed for initiating the due process of law undertaken by the plaintiff, the decree of possession has rightly been passed in favour of plaintiff-respondent. ;